1. When an administrative agency action is appealed to the district court pursuant to the
Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601
et seq., and then appealed from the district court to the appellate court, we review the
agency's decision as though the appeal had been made directly to us, and we are subject to
the same limitations of review as the district court.

2. The scope of appellate court review of an administrative agency's decision is governed by
K.S.A. 77-621(c)(4). We have plenary or de novo review over preemption questions,
which are questions of law.

3. Section 301 of the Labor Management Relations Act, 29 U.S.C. 185(a) (2000), provides
that suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce, or between any such labor
organizations, may be brought in any district court in the United States having
jurisdiction of the parties, without respect to the amount in controversy or without regard
to the citizenship of the parties.

4. Section 301 of the National Labor Management Relations Act provides federal
jurisdiction for controversies involving collective bargaining agreements and authorizes
federal courts to fashion a body of federal law for the enforcement of these collective
bargaining agreements.Section 301 mandates resort to federal rules in order to
ensure
uniform interpretation of collective bargaining agreements, and thus to promote the
peaceable, consistent resolution of labor-management disputes.

5. The general rule developed by the United States Supreme Court regarding when federal
preemption is necessary in collective bargaining controversies is that if the resolution of a
state law claim depends upon the meaning of a collective bargaining agreement, then the
application of state law is preempted and federal labor law principles must be employed
to resolve the dispute.

6. Section 301 of the Labor Management Relations Act preempts all state law claims where
the legal character of the claim requires interpretation of the express or implied terms of a
collective bargaining agreement.

The procedural facts in this case are for the most part undisputed. Creekmore was
employed by SBT from March 27, 1982, through May 29, 2002. She was terminated for a stated
reason of misconduct. The terms and conditions of her employment were governed by the
collective bargaining agreement CWA had negotiated with SBT. The collective bargaining
agreement in effect at the time of Creekmore's termination provided that she was not entitled to
paid vacation or severance pay if she was terminated for reasons of misconduct.

"c. Terminated after a leave of absence when no work is available in the Force
Adjustment
Area, provided there was every reasonable expectancy at the time the leave was granted
that the employee would return to work and the employee is willing and able to do so; or

"d. Dismissed, except for reasons of misconduct, after having three (3) or
more years of
Continuous Service."

"Section 1. Vacation Eligibility. Subject to the provisions of Sections 3., 4., 8.,
and 9. hereof,
vacations with pay shall be granted during the vacation year to each employee, except upon
dismissal for
misconduct, who shall have completed a period of six (6)-months' employment since date of
engagement or
reengagement, whichever is later, and who has performed work for the Company within the
vacation year."

SBT refused to pay Creekmore any severance or vacation pay upon her termination. She
submitted a claim with the Kansas Department of Labor (KDL) requesting accrued vacation pay
in the amount of $16,378 and a severance amount of $42,916 due under the collective bargaining
agreement. Before the KDL, Creekmore argued that her termination was part of a force
reduction, carried out over several years, to avoid paying separation benefits and that her
termination "for reasons of misconduct" was pretextual, concealing SBT's true motive. The KDL
granted SBT's motion to dismiss, finding Creekmore's claim was preempted under the LMRA.
The district court affirmed the KDL's ruling on the motion to dismiss.

Our review involves examination of a decision by a state administrative agency. When an
administrative agency action is appealed to the district court pursuant to the Kansas Act for
Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et
seq., and
then appealed from the district court to this court, we review the agency's decision as though the
appeal had been made directly to us, and we are subject to the same limitations of review as the
district court. Pitts v. Kansas Dental Bd., 267 Kan. 775, 776, 987 P.2d 348 (1999).
Our scope of
review is set forth in K.S.A. 77-621(c)(1) through(8). More specifically, our scope of review is
governed by K.S.A. 77-621(c)(4). We have plenary or de novo review over preemption
questions, which are questions of law. Doty v. Frontier Communications, Inc., 272
Kan. 880,
888, 36 P.3d 250 (2001); Lindemuth v. Goodyear Tire & Rubber Co., 19 Kan.
App. 2d 95, 99,
864 P.2d 744 (1993).

Creekmore argues that the issue of whether she committed misconduct was a question of
fact and resolution of that question was not dependent on an interpretation of the collective
bargaining agreement. Consequently, she argues the KDL and the district court incorrectly held
that her argument was preempted by federal law. Creekmore presents several cases with little
application to the facts in this case, arguing they support her claim that there is no need to
interpret the collective bargaining agreement. She maintains that either the KDL or the district
court could have decided whether she was dismissed for misconduct and whether she was
entitled to vacation and severance pay. See e.g., Whelan's Inc. v. Kansas Dept. of Human
Resources, 235 Kan. 425, 429, 681 P.2d 621 (1984) (computation of the rate at which
accrued
vacation is to be paid); see also Livadas v. Bradshaw, 512 U.S. 107, 129 L. Ed. 2d
93, 114 S. Ct.
2068 (1994) (plaintiff's claim under state statute that imposed a monetary penalty for each day
that passed between an employee's discharge and receipt of payments for wages due);
Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994)
(whistle-blower
action); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d
410, 108 S.
Ct. 1877 (1988) (workers compensation, retaliatory discharge); Felix v. Lucent
Technologies,
Inc., 387 F.3d 1146 (10th Cir. 2004) (fraudulent misrepresentation to induce early
retirement);
Karnes v. Boeing Co., 335 F.3d 1189 (10th Cir. 2003) (Oklahoma drug testing
act); Hysten v.
Burlington Northern Santa Fe Ry. Co., 372 F. Supp. 2d 1246 (D. Kan. 2005) (retaliatory
discharge for filing FELA claim).

"Suits for violation of contracts between an employer and a labor organization
representing
employees in an industry affecting commerce as defined in this chapter, or between any such
labor
organizations, may be brought in any district court of the United States having jurisdiction of the
parties,
without respect to the amount in controversy or without regard to the citizenship of the parties.''
29 U.S.C.
§ 185(a).

In Lindemuth, 19 Kan. App. 2d at 97-98, the court explained the interplay of
federal
preemption in the context of collective bargaining agreements:

"The general rule developed by the United States Supreme Court regarding when
federal
preemption is necessary in this context is as follows:

'[I]f the resolution of a state-law claim depends upon the meaning of a
collective-bargaining
agreement, the application of state law (which might lead to inconsistent results since there could
be as many state-law principles as there are States) is pre-empted and federal labor-law
principles–necessarily uniform throughout the Nation–must be employed to
resolve the dispute.'
Lingle, 486 U.S. at 405-06.

See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 85 L. Ed. 2d 206, 105
S. Ct. 1904 (1985);
Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 103-04, 7 L. Ed. 2d 593, 82 S. Ct.
571 (1962). In other
words, when resolution of a state law claim is 'substantially dependent' upon analysis of the terms
of a
collective bargaining agreement, the state claim must either be treated as a § 301 claim or
dismissed as
preempted by federal law. Allis-Chalmers Corp., 471 U.S. at 220."

Section 301 of the LMRA preempts all state law claims where the legal character of the
claim requires interpretation of the express or implied terms of a collective bargaining
agreement. See Atchley v. Heritage Cable Vision Associates, 101 F.3d 495, 498-99
(7th Cir.
1996) ("If the resolution of a state law claim depends on the meaning of, or requires the
interpretation of, a collective bargaining agreement, the application of state law is
preempted.");
Lopez v. Smurfit-Stone Container Corp., 2003 WL 297533, *2 (N.D. Ill. 2003)
(preemption
triggered whenever state law claim is "'founded directly on rights created by collective bargaining
agreements'. . . and when the resolution of [the] state law claim 'depends on the meaning of, or
requires the interpretation of, a collective bargaining agreement'"). However, a state law claim is
not preempted if it merely requires reference to a collective bargaining agreement. See In re
Bentz Metal Products Co., Inc., 253 F.3d 283, 285 (7th Cir. 2001) ("We now hold . . . that
a state
law claim is not preempted if it does not require interpretation of the [collective bargaining
agreement] even if it may require reference to the [collective bargaining agreement].").

A strikingly similar issue was addressed by the federal court in
Krygowski v. A T & T
Corp., 2003 WL 164223 (N.D. Ill. 2003) (unpublished opinion). Krygowski alleged that
she was
laid off from her employment with AT&T and that AT&T refused to pay her 52 weeks
of
termination pay as required under the collective bargaining agreement AT&T had with
Krygowski's union, CWA, the same union in the present case. Krygowski filed suit in Illinois
state court alleging violation of the Illinois Wage Payment and Collection Act. AT&T
removed
the case to federal court and then filed a motion to dismiss claiming Krygowski failed to exhaust
internal union remedies under the collective bargaining agreement.

Addressing the issue of federal preemption under the LMRA, the court stated that even
though Krygowski's claim was "directly founded" on provisions of the collective bargaining
agreement, the claim must still require interpretation of the collective bargaining agreement itself
in order to invoke federal preemption. Slip op. at *2. In determining whether Krygowski was laid
off, as opposed to being dismissed for reasons such as misconduct that would disallow
termination pay, the Krygowski court held: "[T]he alleged obligation to pay in this
case stems
from the CBA, and whether or not Krygowski qualifies for the severance payments requires an
interpretation of whether or not she qualifies under the terms of the CBA." Slip op. at *3. Relying
primarily on Atchley v. Heritage Cable Vision Associates, 101 F.3d 495, the court
concluded
Krygowski's claim was preempted by section 301 of the LMRA. See Atchley, 101
F.3d at 500
(claim for increases and bonuses was preempted by section 301 of the LMRA because the
collective bargaining agreement governed the amount, method, and timing of payment of
bonuses and the increase in wage to the plaintiffs). We find the analysis in Krygowski
to be
persuasive.

Creekmore argues that her claim for wages would not require an interpretation of the
contract because her entitlement to the contractual severance depends on whether she was guilty
of misconduct. We disagree. Whether a union member is terminated for misconduct seems to be
at the very heart of the collective bargaining agreement and essential to protection of union
rights.

The district court did not err in finding that Creekmore's state law claim was preempted
by section 301 of the LMRA. Creekmore's claim grew out of her employment relationship with
SBT and her union's collective bargaining agreement covering her employment. Although the
term "misconduct" is not defined within the collective bargaining agreement, we cannot say that
all that is needed is merely a passing reference to the agreement. See Livadas, 512
U.S. at
122-24. Whether Creekmore was terminated for misconduct requires interpretation of the
collective bargaining agreement. Construing the term misconduct necessitates interpretation of
the collective bargaining agreement. Creekmore's claim for severance and unpaid vacation is
"substantially dependent" upon an analysis of the terms of the collective bargaining agreement.
Lindemuth, 19 Kan. App. 2d 95, 97-98. Consequently, section 301 of the LMRA
preempts state
law jurisdiction over Creekmore's wage claim, and the KDL lacked jurisdiction to resolve the
claim.